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Ref. Co. was made specific to the terms of the contract at issue
therein and would not apply generally to all contracts,
particularly not to a contract for sale as existed in this case.
Petitioners also rely on the case of Boykin v. Commissioner,
344 F.2d 889 (5th Cir. 1965), for the proposition that, although
legal title to real property does not pass to a purchaser under a
contract of sale until actual delivery of a deed to the property,
a purchaser is vested with equitable title from the date of the
contract for sale or from the date the purchaser takes
possession. Petitioners’ reliance on Boykin is misplaced. In
Boykin, the Court of Appeals for the Fifth Circuit (Fifth
Circuit), to which an appeal in this case would lie, stated:
under Texas law, a purchaser of realty ordinarily gets
equitable title with the execution of a binding
contract of sale. [Footnote omitted.] Of course it is
often said that equitable title does not pass where the
contract is by its terms expressly conditional. North
Texas Realty & Construction Co. v. Lary, Tex. Civ.
App., writ refused, 1911, 136 S.W. 843; 52 Tex. Jur. 2d
Specific Performance � 48. And pointing out that "A
contract may be conditional in its inception as to one
party and unconditional as to the other," that text
speaks in terms of the right to specific performance
not being available prior to the time the equitable
title passes. Ibid. In other words, the right to
specific performance resting on an equitable right
frequently measures the time the equitable right comes
into being. [Emphasis added.]
Boykin v. Commissioner, supra at 892. Under Texas law, a party
to a contract is not entitled to specific performance where that
party materially breaches the contract by failing to meet a
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